(dissenting.) This action was brought to recover damages for personal injuries sustained by the plaintiff by reason of falling upon a sidewalk in the city of Buffalo, in consequence of the negligence of the defendant, its agents and servants, in allowing the sidewalk to become defective, and to remain in a dangerous and unsafe condition. The evidence in behalf of the plaintiff tended to establish the allegations of her complaint. At the close of the plaintiff’s case the defendant moved for a nonsuit upon the ground that the plaintiff had failed to show that she had complied with chapter 572 of the Laws of 1886, and that consequently she could not maintain this action.
One of the questions before us is whether this act, entitled “An act in relation to certain actions against municipal corporations,” is applicable to the city of Buffalo. The first section of that statute is as follows: “No action against the mayor, aldermen, and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen, and commonalty, or of any department, board, officer, agent, or employe of said corporation, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law-officer thereof, within six months after such cause of action shall have accrued.” The injuries-to the plaintiff were inflicted on the 18tli day of December, 1887. This action was begun in July, 1888. On the 29th day of May, 1888, she caused to be delivered to the city clerk and comptroller, to be acted upon by the common council, a petition to the effect that she had so sustained personal injuries, while lawfully passing over the sidewalk,' without negligence on her part. After describing her injuries, and stating the fact that the sidewalk had been out of repair for more than a month before the accident, the plaintiff asked “that an order be drawn upon the proper fund, for the sum of five thousand dollars, in favor of your petitioner to compensate her for her injuries and damages sustained in the premises.” No other notice than the above was given to the authorities of the city of Buffalo. This paper, when put in evidence, bore the following indorsement: “Denied on recommendation of corporation counsel. [Signed] William Adams, Chairman.” The case shows that the petition was examined by the corporation counsel, who advised the committee on claims to decline to pay the demand; but it does not appear when the petition was so examined by him, and his advice so given.
Assuming for the moment that chapter 572 of the Laws of 1886 is applicable to the city of Buffalo, and that the provisions therein contained are conditions precedent to the maintenance of this action, it is proper, first, to inquire whether or not there has not been a substantial compliance therewith by the plaintiff. That statute requires that the action be brought within a a year after the injuries have been sustained. This action was brought within the time specified. A further provision thereof is that notice of the time and place at which the injuries were received shall be filed with the counsel to the corporation, or other proper law-officer thereof, within six months after such cause of action shall have accrued. The application for the payment of the demand of the plaintiff, containing a statement of the time and place at which the injuries were received, came to the knowledge of the corporation counsel through the clerk and comptroller, and it was officially acted upon by him, and the claim rejected. There is, therefore, no ground *396for contending that the plaintiff has not brought herself within the statute, except in regard to the following provisions: “Nor unless notice of the intention to commence such action * * * shall have been filed with the counsel to the corporation,” etc. The petition of the plaintiff to the common council did. not, in form, give notice of her intention to begin the action in case her demand was not paid; yet, on the whole, we are inclined to think that an expression of such intention may be necessarily implied in the language of the petition. This statute, being restrictive of the rights of a citizen, should not be extended beyond the purview of the legislature; and a literal reading thereof ought to give way when its substance, and the general intent of the legislature as expressed in the act, have been observed. It is at most a statute regulating the mode of procedure only; and like all rules of practice, it should be construed in furtherance of justice. The mandatory part thereof has been complied with. The part relating to an intention to begin an action is directory only; and it ought not to be permitted to be interposed to defeat a just demand, particularly as the law-officers of the defendant treated the notice served as a literal compliance with the statute. But was this act intended to apply to all cities of the state of New York having above 50,000 inhabitants, where such city already had special provisions in its charter regulating and restricting the right of actions in such eases as this? Section 7, tit. 3, c. 519, of the Laws of 1870, being a part of the charter of the city of Buffalo, declares that “no action or proceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council.” Whatever may have been in the mind of the draughtsman of chapter 572 of the Laws of 1886. that act, both in its title and in its provisions, is clearly applicable to all cities of the state having 50,000 inhabitants or upwards, though New York is the only city in the state, the legal name of which is “The Mayor, Aldermen, and Commonalty.” We do not assume that this statute was made inform a general law, instead of a local act applicable to the city of New York only, in order to avoid the obstacle in section 18, art. 3, of the constitution. If it had been the purpose of the legislature to make the act applicable only to the city of New York, a direct and legal course would have been to amend the consolidated act relating to that city; for there is nothing in the constitution prohibiting the amendment to the city charter without making the same applicable to all the cities of the state. In the ease of Dawson v. City of Troy, 2 N. Y. Supp. 137, it was held that this law applies to the city of Troy. The report of the case, however, does not show that the city of Troy had any local provision upon this subject, though the same in fact existed. In the case of Denair v. City of Brooklyn, 5 N. Y. Supp. 835, it was held that the act was applicable to the city of Brooklyn. At the time of the decision above mentioned, (Denair v. City of Brooklyn,) the charter of that city contained no provision requiring the presentation of a claim before the bringing of an action, as is contained in the defendant’s charter, though the city of Troy had such a provision, as well as the city of New York. It is to be observed thht there is no repealing provision in the act in question. It does not purport to amend or repeal any local act; and it cannot be held to repeal such local acts, inferentially or constructively, unless such intent is manifestly intended by the act itself. Weiler v. Nembach, 114 N. Y. 39, 20 N. E. Rep. 623; In re Evergreen, 47 N. Y. 216. A strong circumstance fortifying this position is the passage by the legislature, in the year 1889, of an act amending the charter of the city of Buffalo in this particular by incorporating the provisions of the charter and of certain ordinances into a homogeneous statute, wherein it is assumed by the legislature, necessarily, that the act of 1886 had no application. Chapter 318 of the Laws of 1889. See Potter’s Dwar. St. 143-147. The motion for a new trial should be granted, with costs to abide the event.